“If the trial is marred by grave irregularities which operate to the prejudice of the accused then it would be deemed that the accused has withstood the trial and as such he cannot be tried again.”

Lahari Gurrala | Symbiosis Law School, Hyderabad | 31st December 2019

RITESH SONI vs UNION OF INDIA AND ORS., W.P.(C) 5210/2019

Facts of the Case:

• The Petitioner, an Assistant Sub Inspector (Ministerial) [“ASI(M)”] had enrolled in the BSF on 29th December, 2009 as Head Constable (Ministerial). After completion of his basic training, he was posted to 120 BN BSF on 20th June, 2010. He was thereafter posted to the SHQ, BSF Raiganj on 25th November, 2011. While he was posted there, he was promoted as ASI(M) on 1st April, 2015.
• The Petitioner gave a complaint to the DG BSF, New Delhi on 26th April, 2015, alleging harassment at the hands of an Assistant Commandant (Ministerial) posted at SHQ, BSF Raiganj. Even while the complaint has been pending, the Petitioner was posted to the 155th BN BSF on 3rd July, 2015.
• On the complaint given by the Petitioner a one-man Staff Court of Inquiry (“SCOI”) was ordered by the DIG, BSF Raiganj by an order dated 7th August, 2015. In terms of the remarks of the Inspector General (“IG”) BSF North Bengal on the SCOI proceedings, a disciplinary action was directed to be initiated against the Petitioner under the BSF Act and Rules, 1969. On 23rd June, 2017 a charge sheet under Section 34 (a) of BSF Act, 1968 was issued to the Petitioner. The charge against him was that of making a false accusation against a person subject to the BSF Act knowing such accusation to be false. The Commandant ordered that a Record of Evidence (“RoE”) be conducted.
• On completion of the RoE, the Petitioner was summarily tried by the Commandant for committing an offence under Section 34 (a) of BSF Act, 1968. The Petitioner was awarded a punishment of „reprimand‟.
• In exercise of the powers vested in him under Section 55 (2) of the BSF Act, 1968, the DIG SHQ BSF, summary trial proceedings were set aside on account of a number of illegalities in conducting the summary trial, and particularly not availing the consent of the Petitioner for disposal of the case on Form I Part I of Rule 180 of the BSF Rules; non-arraignment of the Petitioner on charge in terms of Rule 138 of the BSF Rules; and recording “Yes” in place of “Guilty or not Guilty”, as per the pleading of accused. The DIG SHQ BSF Siliguri directed the Commandant of the 155th BN BSF to conduct a de novo trial with due diligence & by following proper procedure as per the BSF Act and Rules on the basis of the RoE dated 6th August, 2018 already conducted by the SHQ BSF Siliguri.
• The Petitioner challenges in the High Court of Delhi that an order dated 18th April, 2019 issued by the Respondents in rejecting the Petitioner’s representation against the commencement of the trial against him de novo.
• The Petitioner then made a representation on 30th November, 2018 which was rejected by the DG, BSF by the second impugned order dated 30th November, 2018.
• Learned counsel for the Respondents urged that in the present case, the illegality on account of which the de novo trial was ordered was in effect an acknowledgment that the initial trial was rendered non est. In his submission, therefore, a de novo trial did not stand precluded.

Issue:

• whether the impugned order, by which a de novo trial has been directed to be conducted against the Petitioner is bad in law?

Held:

The court held that it is unable to agree with the above submission of learned counsel for the Respondents. As pointed out in Banwari Lal Yadav vs Union of India ,as long as the initial trial is initiated before the Competent Court vested with jurisdiction to undertake the trial, the subsequent irregularities would not result in the entire trial being declared non est, permitting a fresh trial on the same charge. As per the above mentioned case, it was noted that the initial trial will be considered non est if the court is not competent to try the offence for want of sanction for prosecuting the accused or if the composition of the court is not proper as required for that type of court or if the court is illegally constituted of unqualified officers.”

•  It was held that the present case none of aforesaid contingencies exist. On the other hand, the second set of contingencies pointed out in the Banwari Lal Yadav (supra) are germane to the present case:

“cases where the trial ipso facto is unsatisfactory as for example if during the course of the trial, inadmissible evidence is admitted or admissible evidence is shut out or proper procedure is not followed and the trial is consequently marred by grave irregularities which operate to the prejudice of the accused”.

• The Court is left with no manner of doubt that in the present case the illegalities pointed out in the impugned order dated 6th August, 2019 fall in the latter category of the cases pointed out in Banwari lal Yadav (supra). In other words, the fact that the Petitioner withstood the trial cannot be wiped out. There is an express bar in law in trying the Petitioner again for the same offence. Consequently, the impugned order dated 6th August, 2018 and the subsequent order dated 18th April, 2018, rejecting the Petitioner’s representation are hereby set aside.
• The writ petition is allowed in the above terms. The application is disposed of